Race Brothers

National Labor Relations Board - Board Decisions

May 16, 1940

23 N.L.R.B. 868 (N.L.R.B. 1940)

In the Matter - of HERMAN RACE, Louis RACE, JACK RACE, AND-HFZMN
RACE, INDIVIDUALLY AND AS COPARTNERS , DOING BUSINESS UNDER
THE FIRM NAME AND STYLE OF RACE BROTHERS and INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, LOCAL
286
Case No. R-1797-Decided May 16, 1940
Paper Box Manufacturing Industry-Jurisdiction : controversy as to; held, Act
is applicable to Company-Investigation of Representatives : controversy concern-
ing representation of employees : rival unions ; contract , where Company informed
of membership claims of rival union prior to period prescribed for notice of
termination , no bar to-Unit Appropriate for Collective Bargaining : regular
production and maintenance employees excluding supervisory employees ; four
persons excluded as temporary employees-Representatives : eligibility, to partici-
pate in choice : employee as to whom there is reason to presume will be reem-
ployed when his services are required-Election Ordered: eligibility to vote
determined as of pay roll immediately preceding date of Direction of Election.
Mr. Jerome I. Macht, for the Board.
Mr. Edward Unterberger, of Philadelphia, Pa., for the Company.
Mr. Louis H. Wilderman, of Philadelphia, Pa., for the A. F. of L.
Mr. Nathan Ziserman, of Philadelphia, Pa., for the C.. I. O.
Miss Margaret Holmes, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 19, 1940, International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, Local 286, affiliated with the American
Federation of Labor, herein called the A. F. of L., filed with the Re-
gional Director for the Fourth Region (Philadelphia, Pennsylvania)
a petition, and on March 25, 1940, an amended petition, alleging that
a question affecting commerce had arisen concerning the representation
of employees of Herman Race, Louis Race , Jack Race, and Helen
Race, individually and as copartners, doing business under the firm
name and style of Race Brothers, herein called the Company, and
requesting an investigation and certification of representatives pur-
23 N. L. R. B., No. 92.
868
HERMAN RACE 869
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On March 28, 1940, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
9 (c) -of the Act and Article III, Section 3, of National Labor Relations
Board- Rules, and', Regulations-Sorios', 2; 'as amended, ordered an in-
vestigation and directed the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice.
On March 30, 1940, the Regional, Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the A. F.
of L., and United Paper Workers of America, affiliated with the
Congress of Industrial Organizations, herein called the C. I. 0., a
labor organization claiming to represent employees directly affected
by the investigation. On April 3, 1940, the Regional Director issued
an order denying a motion by the C. I. O. to postpone the hearing,
without prejudice to renewal of such motion before the Trial
Examiner.
Pursuant to the- notice, a--hearing:-was held on April, 8, 15, 16,- and
17, 1940, at Philadelphia, Pennsylvania, before P. H. McNally, the
Trial Examiner duly designated by the Board. The C. I. O. filed a
petition to intervene which was granted by the Trial Examiner. The
Board, the Company, the A. F. of L., and the C. I. O. were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
-Att-the commencement of the hearing=the C. I. O. renewed. its mo-
tion, previously made to and denied by the Regional Director, for
a continuance of the hearing.- The Company joined in this motion.
The, Trial Examiner denied the motion and his ruling is hereby
affirmed. The Trial Examiner admitted in evidence an answer to
the petition offered by the Company. During the course of the hear-
ing the Trial Examiner made a number of rulings on motions and
on objections to the admission of evidence. The Board has reviewed
all the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.. The Com-
pany, the A. F. of L., and the C. I. O. filed- briefs with the 1 Board,
which have been fully considered.
Upon the entire record in the case, the Board makes 'the following :
1 The motion for a continuance was made on the grounds previously urged before the
Regional Director , which do not appear in the record , and on the further ground that
additional time might result in a settlement of,the dispute.
283034-41-vol 23-56
870 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a copartnership composed of Herman Race,
Louis Race, Jack Race, and Helen Race, who do business under the
name and style of Race Brothers. It is engaged in the manufacture,
sale, and distribution of folding paper boxes at a place of business
located in Philadelphia, Pennsylvania.
In 1939 and during the first 3 months of 1940, the Company pur-
chased $51,420.40 worth of raw materials, consisting principally of
paperboard. Of this amount, approximately 12 per cent was pur-
chased and shipped to the Company from mills located outside the
State of Pennsylvania.2 During the same period the Company man-
ufactured and sold about seven million boxes, its total sales amount-
ing to $47,698.60. Of these sales, from 1 to 2 per cent were made to
customers located in States other than Pennsylvania and the boxes
sold were shipped to the out-of-State purchasers from the Company's
plant. '
The business described above constituted about one-third of the
total operations of the Company. The principal portion of the
Company's business consists of the processing of paperboard and the
manufacture of boxes therefrom, for and on behalf of David Back, a
Philadelphia box broker. In 1939 and during the first 3 months of
1940, two-thirds of the total operations of the Company constituted
boxes made for and on behalf of Back. During this period, Back
purchased 1,200 tons of paperboard, amounting to an expenditure of
$54,223.78. Twenty per cent of this expenditure represented pur-
chases of board from mills located outside the State of Pennsylvania,
principally in New Jersey. All of the board, including that pur-
chased outside the State, was shipped to the company plant direct
from, the mills and was unloaded and stored by the Company on its
premises. During this period Back sold $13,050.87 worth of the
board so purchased, the Company buying $12,001.75 worth of the
board for the manufacture of boxes on its own account, and other
concerns in Philadelphia buying '$1,049.12 worth of the board. The
remaining $31,172.91 worth of board was processed and manufactured
into 12,797,931 boxes by the Company on the order of Back. Back
paid the,Company about $18,000 for such processing. Back sold ap-
2 The Company purchased $39,418.65 worth of raw materials directly from various
paper mills ; $3,800 worth of these came from mills, outside Pennsylvania. In addition,
the Company purchased $12,001.75 worth of paperboard from David Back, a box broker
who purchases and imports about 20 per cent of his yearly supply of paperboard from
mills located outside Pennsylvania.
HERMAN, RACE 871
proximately $72,000- worth of the boxes thus manufactured by the
Company; about 28 per cent of his sales were made to concerns lo-
cated outside the State of Pennsylvania.3 These boxes were packed
by company employees and either delivered to Back's customers in
company trucks, or picked up at the Company's plant by Back's
customers. Shipments from the Company's plant occurred on the
average of every 3 or 4 days. In the conduct of all its operations,
the Company employs about 20 employees.
The Company contends that it is not engaged in interstate com-
merce within the meaning of the Act. We disagree with this con-
tention. There exists a substantial flow of raw materials over State
lines to the Company's plant, and a similar flow of finished products
from the Company's plant to destinations outside the State. It is
immaterial that title to a portion of both the raw materials and the
finished products resides in Back. We find that the Act is applicable
to the Company.'
II. THE ORGANIZATIONS INVOLVED
Internatiolial Brotherhood of Pulp, Sulphite and Paper Mill
Workers is a labor organization chartered by the American Federa-
tion of Labor. It admits to membership persons engaged as produc-
tion and maintenance employees by the Company, exclusive of super-
visory officials.
United Paper Workers of America is a labor organization char-
tered by the Congress of Industrial Organizations. It admits to
membership persons employed by the Company as production and
maintenance workers, exclusive of supervisory officials.
M. THE QUESTION CONCERNING REPRESENTATION
On April 27, 1939, the Board issued a Decision and Order 5 in
which it ordered, among other things, that the Company, upon
request, bargain collectively with the C. I. O. Thereafter, the com-
pany and the C. I. O. entered into an agreement covering wages,
hours, and conditions of work for the employees of the Company."
$ Back 's total sales , including board and boxes, amounted to $84,945.51 . Back testified
that 28 per cent of these were made and shipped to out-of-State concerns . Inasmuch
as all the board sold by Back was purchased by Philadelphia customers , the 28 per cent
of interstate sales and shipments obviously refers to boxes made by the Company for and
on behalf of Back.
4 See National Labor Relations Board v. Fainblatt , 306 U. S. 606; National Labo,
Relations Board v. Sunshine Mining Company , 110 F. ( 2d) 780 (C. C. A. 9). See also
Section IV, below.
5 Matter of Herman Race, Louis Race, Jack Race, and Helen Race, individually and as
copartners doing business under the firm name and style of Race Brothers and United
Paper Workers of America, C. I. 0., 12 N. L. R. B 538.
$ The agreement was entered into on or about April 30. 1949 However, it bears the
date of March 28, 1939.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The agreement also provided fora closed shop and the check-off of
C. I. O. dues. The expiration date of the agreement was March
28, 1940.
On February 7, 1940, representatives of the A. F. of L., together
with one Ash, a field organizer for the C. I. 0., informed the Com-
pany that 16 employees of the Company had joined the A. F. of L.;
which was authorized to collect the dues of the employees in the
future. On March 4 Henry Segal, secretary of the A. F. of L.,
telephoned the Company and arranged a conference for March 7
to negotiate an agreement. The conference was held on March 7 in
the offices of David Back. The A. F. of L. presented •a proposed
agreement to the Company and Back, and there followed a general
discussion of working conditions. A serious dispute occurred over
a wage increase requested by the A. F. of L. No agreement was
concluded at this conference.
On March 8, 1940, the company bookkeeper sent the A. F. of L. a
check to cover the dues of the employees. On March 11, 1940, the
Company informed the A. F. of L. that it was precluded from con-
tinuing negotiations for an agreement because its contract with the
C. I. O. was still in force. No further negotiations were had be-
tween the Company and the A. F. of L.
The Company and the C. I. O. maintain that there is a contract
existing between them covering conditions of work for the Com-
pany's employees which constitutes a bar to an investigation of
representatives. The 1939 contract contained a provision, for auto-
matic renewal in the event that neither party thereto terminated it
by notice in writing at least 30 days before March 28, 1940. Neither
the Company nor the C. I. O. has given such written notice. How-
ever, the A. F. of L. notified the Company of its membership claims
more than 30 days before the expiration date of the contract between
the ' Company and the C. 1. O. The Company apparently ' credited
the assertion of the A. F. of L. representatives that the A. F. of L.
had 16' members since its bookkeeper checked, off dues- for the em-
ployees to the A. F. of L. for the month of March 1940, and since
the Company conducted negotiations with a view toward ekecnti'ng
a contract with the A. F. of L. on March 7, 1940. We find that the
Company had notice that the A. F. of L. claimed to represent its
employees before and on the date it claims its 'contract with the
C. I. O. was renewed. We therefore find that the contract constitutes
no bar to an investigation of representatives.?
We find that a question has arisen concerning the representation
of the employees of the Company.
T See Matter of Colonie Fibre Company, Inc and Cohoes Knit Goods Workers Unton
No. 21514, A. F. of L., 9 N. L. R B. 658. , ,
BERMAN RACE 873
IR.-,THE EFFECT OF THE QUESTION , CONCERNING REPRESENTATION ON
COMMERCE,
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
Inerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
All parties agree that the unit appropriate for the purposes of
collective bargaining should consist of the Company's regular pro-
duction and maintenance employees, exclusive of supervisory officials.
The A. F. of L., however, contends that five persons should be ex-
cluded from the unit because they are extra or temporary employees.
The Company and the C. I. O. dispute the claim that these persons
are temporary employees and insist on their inclusion in the unit.
All ,paaGies».agree•.that Gertrude-Race, the.-Company's bookkeeper,
should be excluded from the unit.
The five persons whose status is disputed were hired about March
14, 1940, as a night shift. They worked for 2 weeks and were then
laid off by the Company. The occasion for their employment is
contested in the record. The Company asserts that a machine broke
clown and consequently it was necessary to work a night crew until
the machine was repaired." The A. F. of L. claims that the Com-
pany employed extra help for 2 weeks to enable it to enlarge its
stock in expectation of a labor dispute among the employees. With-
out determining the validity of either contention, we find that the
employment of these persons was temporary.
The record shows that four' of the five persons hired on March 14,
1940, namely, James Crawford, Arthur Ott, Edward Sparks, and
Frank Sparks, have little, if any, expectancy of reemployment.
Crawford and Ott, although they had worked for the Company in
1938, received no employment during the year 1939 and were hired
for only 2 weeks in the first 3 months of 1940. Edward Sparks and
Frank Sparks had never worked for the Company prior to the 2
weeks' employment they received in 1940. The parties stipulated
that 19 other employees whose names appeared on the pay roll of
February 28, 1940, are regular production and maintenance em-
ployees. The record does not show that any of these received as
little as 2 weeks' employment in 1939 and 1940. We therefore find
8 The record shows, however, that the machine in question was repaired prior to the
employment of these persons.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that James Crawford, Arthur Ott, Edward Sparks, and- Frank
Sparks are temporary employees who, should be excluded from the
unit.
The fifth person hired on March 14, 1940, was Edward Cullen.
He had worked for the Company about 5 years on the following
basis : Each October Cullen quits the Company's employ to take a
position with a lithographing plant which pays him a higher salary
than he receives from the Company. This position expires after
Christmas of each year, and thereafter the Company hires him when
there is work available. Although Cullen worked only 2 weeks dur-
ing the first 3 months of 1940, in view of his past relationship with
the Company there is reason to presume that he will be reemployed
when his services are required by the Company: We therefore find
that Edward Cullen should be included in the unit.
We find that all regular production and maintenance employees
of the Company, exclusive of supervisory employees, constitute a
unit appropriate for the purposes of collective bargaining and that
said unit will insure to the employees of the Company the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Both the A. F. of L. and the C. I. O. claim to represent a majority
of the employees in the appropriate unit. A check by the Regional
Director of their membership claims indicates that both unions have a
substantial following among the Company's employees. We find that
an election by secret ballot is necessary to determine the proper
representative for collective bargaining and thus resolve the question
concerning representation.
We shall direct that the employees in the appropriate unit who
were employed during the pay-roll period last preceding the date
of our Direction of Election, including the employees who did not
work during such pay-roll period because they were ill or on vaca-
tion, and employees who were then or have since been temporarily
laid off, but excluding those who have since quit or been discharged
for cause, shall be eligible to vote in the election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Herman Race, Louis Race, Jack Race, and
Helen Race, individually and as copartners, doing business under
the firm name and style of Race Brothers, Philadelphia, Peimsylvania,
HERMAN RACE 875
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All the regular production and maintenance employees of the
Company, exclusive of supervisory officials, constitute a unit appro-
priate for the purposes of collective -bargaining, within the meaning
of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Herman Race, Louis Race, Jack Race, and Helen Race; indi-
vidually and as copartners, doing business under the firm name and
style of Race Brothers, Philadelphia, Pennsylvania, an election by
secret ballot shall be conducted as early as possible but not later
than thirty (30) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Fourth
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all regular production and maintenance em-
ployees of the Company, who were employed by the Company during
the.pay; roll period last preceding the date of this Direction, including
employees who did not work during such period because they were
ill or on vacation and those who were then or have since been tem-
porarily laid off, but excluding supervisory officials and those who
have since quit or been discharged for cause, to determine whether
they desire to be represented by International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, Local 286, affiliated "with the
American Federation of Labor, or by United Paper. Workers of
America, affiliated with the Congress of Industrial Organizations, or
by neither.